For millions of immigrants, future hinges on Supreme Court

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The last time the Tucson resident got behind the wheel, his pregnant daughter was in pain, and he was driving her to an urgent care clinic at 2 a.m. He was pulled over by a police officer. When the unauthorized immigrant was unable to produce a valid driver’s license, the officer called immigration and an agent took Mr. Victorino to a detention center.

Victorino had worked as a mechanic in an auto repair shop for 16 years. By the time he was released from the detention center two months later, he had lost his job.

The native of Ciudad Juárez in Mexico, who came to the United States 18 years ago with his wife, says he isn't sure why he wasn't deported but thinks it was because of his clean record. In cases such as Victorino’s, the government often exercises prosecutorial discretion to allow detainees with no criminal background to avoid deportation. He gave up driving because he doesn’t want to do anything else that might jeopardize his and his wife’s lives in America.

Whether Victorino picks up his car keys again may depend on the US Supreme Court, which is scheduled to hear a case Monday that will determine whether two of President Obama’s executive actions, designed to give relief to an estimated 4 million unauthorized immigrants, are allowed to take effect.

For the administration, the immigration reforms would allow millions of people who have spent more than a decade in the country to fully contribute to the society in which they live. For opponents, one of the Constitution’s most hallowed principles – the separation of powers – is at stake, not to mention the rule of law.

But the impact is most intimate and immediate for millions of families like Victorino’s. Faced with more legal uncertainty, and now the added alarm of rhetoric from Republican presidential candidates on illegal immigration, they say they have never been more unsure about whether to stay in the shadows or come out into the light.

“The skepticism and anxiety in this population is quite evident,” says Muzaffar Chashti, head of Migration Policy Institute’s New York office.“They have been salivating for comprehensive immigration reform for 10 years now, and they’ve had their hopes dashed every time.”

A Supreme Court tie would force Victorino and his wife, Norma Rodriguez, to retreat into their home and file away the purple folder filled with family birth certificates, school records, and old utility bills they are collecting as proof of their lives here. Victorino says he would occasionally earn some cash fixing friends’ broken cars and Rodriguez would care for children at home, halting plans to get trained as a certified senior care provider.

The couple would then turn to one of their four daughters, who became a lawful resident after marrying a citizen, to help them gain legal status. But before Nancy Alvarez can sponsor her parents, she would have to become a citizen herself and prove that she has enough assets to support them, as well as her own family.

“We can only wait and hope for a favorable outcome at the Supreme Court,” Victorino says.

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The two actions were both announced by Mr. Obama in 2014. The first would broaden the eligibility requirements for the 2012 Deferred Action for Childhood Arrivals (DACA) program, which offered people who entered the US before they turned 16 and before June 2007 a renewable work permit and exemption from deportation. The second would lower the priority for removing undocumented immigrants who have lived in the US since 2010 and have children who are citizens or permanent residents. The program, called the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), also provides a three-year, renewable work permit.

A month after Obama announced both programs, 26 states sued the administration. Andrew Hanen, a federal judge in southern Texas, issued a preliminary injunction blocking the expanded DACA and DAPA programs. The administration appealed but the US Fifth Circuit Court of Appeals upheld the injunction. The Supreme Court – reduced to eight justices after the death of Antonin Scalia in February – will now hear the case, US v. Texas, on Monday, with a decision expected in June. In the event of a tie, the Fifth Circuit’s decision will stand.

The administration argues that with federal resources already stretched thin, authorities have to prioritize whom they target for deportation. Obama’s executive actions sought to focus efforts on those with criminal records, while providing temporary relief to otherwise law-abiding immigrants, including children and adults who, like Victorino, have children who are citizens or permanent residents.

These kinds of “mixed-status” families are becoming increasingly common, experts say. At least 9 million people live in such families, according to a 2011 Pew report . Research has shown that growing up with parents in the country illegally puts children at a disadvantage. A recent report from the Migration Policy Institute found that those children were more at risk for health problems, developmental delays, and low school achievement. The poverty rate for DAPA families is 36 percent, compared with 14 percent for families with US-born parents, according to MPI. Providing work authorization for unauthorized parents in these families could raise their income by 10 percent.

But others say the law cannot make exceptions and remain the law.

“We can’t make a public policy that says you get to ignore immigration laws if you have a child here,” says Jon Feere, “otherwise the result is people coming here illegally in the ninth month of pregnancy.”

Mr. Feere, who is a legal policy analyst for the Center for Immigration Studies, is also critical of the administration’s prioritization rationale.

“That’s not how immigration laws are supposed to operate,” he says. “If you’re here illegally you’re required to leave. Violence shouldn’t be a prerequisite for immigration enforcement.”

Texas and its co-respondents have also argued that, were Obama’s executive actions to be upheld, it would open the door for sweeping executive powers that could allow future presidents to circumvent the legislature and judiciary on a range of issues.

For undocumented immigrants across the country, the protracted legal battle – and the extreme political climate that has emerged around it – has exacerbated years of uncertainty and anxiety over their future in the country.

“The people eligible for DAPA have been here a while, so they’ve been living with that stress for years,” says Shane Ellis, deputy executive director of the Nebraska chapter of Justice For Our Neighbors, a national immigrant advocacy group, who authored an amicus brief supporting the administration. “Some folks might decide it’s not worth it, that they can’t bear it anymore and that they have to go back to whatever difficult situation in the first place made them come here.”